Wealthy nurse, now in Congress, says EDs should be able to turn patients away

Major media reports that Member of Congress Diane Black is relying on her emergency nursing background to support a proposal to repeal a 1986 law that requires hospitals receiving Medicare to treat all patients regardless of their ability to pay.

October 18, 2017 – Today Amanda Terkel reported in The Huffington Post that Rep. Diane L. Black (R-Tenn.), relying heavily on her own nursing experience, had proposed that hospitals receiving federal funds should be able to turn away emergency department (ED) patients, as they could prior to enactment of a 1986 law. The article, with the subhead “Back to the good old days,” quoted Black’s comments to MSNBC’s Chuck Todd, apparently made on October 13:

I’m an emergency room nurse. There are people that came into my emergency room that I, the nurse, was the first one to see them. I could have sent them to a walk-in clinic or their doctor the next day, but because of a law that Congress put into place to say, no, I have to treat everybody that walks into that emergency room. You took away our ability to say, ‘No, an emergency room is not the proper place.’ … We must treat everybody that walks in whether you’ve had a sore throat for a week, we must see them. And that crowds the emergency room. It drives the cost of emergencies up. And so, yes, if someone comes in from an auto accident, I don’t want to ask whether they have insurance or not. I’m going to take care of them. But what it did is crowd my emergency room… And disallowed me from using my good judgment skills, of which I was trained to do and doctors are as well.

The HuffPost piece explains that the federal Emergency Medical Treatment and Active Labor Act (EMTALA), which became law after President Ronald Reagan signed it in 1986, requires hospitals that receive Medicare funding to treat all patients regardless of their insurance status or ability to pay. So as the piece notes, treating everyone is a condition of federal government support, not a free-standing mandate. Terkel’s piece says that EMTALA was a reaction to the prior practice of “patient dumping,” in which hospitals denied patients treatment or sent them elsewhere, usually because they lacked insurance. Of course, such patients were more likely to have worse outcomes or to die. The “active labor” part of the statute’s name reflects its focus on preventing this from happening to pregnant women. The piece says that it is now widely accepted that EMTALA is flawed, and even the non-partisan Institute of Medicine has called for reforms to ease ED crowding, but the draconian option of gutting the law is rarely discussed.

Black’s media statements do at least tell the public that ED nurses play a key role in triage. But her heavy reliance on her nursing background to support a call to end EMTALA appears to indicate that ED nurses are not very concerned about the health of poor people. That position is not consistent with good public policy or nursing’s ethical standards, which require that nurses act as patient advocates and that they expand access to health care for all patients. Black presents her position as giving ED staff the discretion to turn away people because their problem is not urgent or serious, which are real concerns for the ED. But many hospitals have now opened urgent care clinics in affiliation with their EDs, to provide care for the patients Rep. Black wants to let hospitals dump. It’s obvious that the effect of her recommended action would be to create a big incentive for providers to turn people away based on inability to pay, thereby saving themselves lots of money, as apparently happened in the “good old days.” And any skilled ED nurse knows that you can’t always tell whether a problem is urgent or serious without a rigorous examination, and relying on a cursory look—or one that focused on whether they had insurance—would be a threat to public health. “Just a sore throat” might actually be epiglottitis, where the epiglottis is so swollen that swallowing can close it shut and prevent breathing. So some “just a sore throat” patients should actually be the top priority. A better representation of nursing would be to seek ways to ease ED overcrowding without gutting protections for the health of poor persons, perhaps through expanded insurance, so that patients who now lack the ability to get primary or outpatient care can do so easily. Such an effort would be especially welcome coming from a person who, like Rep. Black, is reportedly worth $75 million because of her interest in the drug-testing company Aegis, which her husband founded in 1986–when the EMTALA law was passed.

The policy issues raised by Rep. Black’s proposal are worth exploring, but it appears that her legislative positions would only exacerbate the existing problems in U.S. health care. Her major complaint seems to be that emergency rooms are expensive places to provide primary care. But she does not appear to offer any solutions beyond repealing EMTALA, or any substantial solutions to rising costs in the U.S. health care system, which is the most expensive in the world yet has among the poorest patient outcomes of all developed nations. On the other hand, Black has failed to support policies that expand access to health insurance to vulnerable populations while controlling costs. For example, she did not support Tennessee’s Medicaid expansion under the Affordable Care Act, also known as “Obamacare.” That expansion could have kept people out of the ED because they would have access to primary care. The Kaiser Family Foundation and others have reported on the benefits of Obamacare in increasing access and self-reported health, as well as in lowering uncompensated care costs.

The extensive growth of urgent care facilities and primary care clinics attached to existing EDs is a sign that there is indeed a problem of overcrowding at EDs. But solutions should center on increasing access to primary care instead of setting vulnerable people up to die on hospital sidewalks. Obamacare’s expansion populations are largely covered under state Medicaid programs, which often pay woefully inadequate rates to primary care providers. Populations who lack a regular provider therefore often only have EDs and urgent care facilities where they can access any health care. Perhaps Rep. Black, as a nurse, should advocate for more equitable rates in Medicaid and for primary care nurse practitioners, who generally receive a significantly reduced reimbursement rate for providing the same care as primary care physicians. She might even consider advocating for a more equitable health care system overall, with options including a single payer system (like Medicare-for-all), which would go a long way toward leveling health care access and decreasing overcrowding in EDs.

Unfortunately, when a prominent federal official like Rep. Black takes a public position like this and explicitly links it to her nursing background, it can give members of the public a distorted impression of nursing. Nurses as a group are rightly viewed as compassionate, but as we have often said, it is also critical to stress that they are informed patient advocates who take a special interest in ensuring that their patients and the public at large has access to essential care. Rep. Black’s statements could easily undermine the public’s understanding that nurses have these qualities. We have known ED nurses who seem more concerned with “throughput” than good care, but good ones realize that they provide vital services for patients with nowhere else to turn.

Tennessee lists Rep. Black as a Registered Nurse. We encourage her, as an RN, to consider her stance on EMTALA and other health care financing issues in light of the Code of Ethics for Nurses. A review of its provisions can be a useful way to evaluate health and other policy positions nurse-legislators adopt while specifically relying on their nursing status and experience. In particular, we urge Rep. Black to consider if her health care positions are consistent with Code of Ethics provisions stating that nurses should:

respect human dignity (1.1);
put patients’ interests first (2.1);
make health care culture safe (3.4);
meet her duty to others (5.1);
protect the healthcare environment (6.3);
work for health care to be a universal right (8.1);
work in pursuit of health and human rights (8.2);
reduce disparities (8.3); and
integrate social justice with nursing and health policy (9.4).

It is difficult to see how the EMTALA policy position that Rep. Black linked to the nursing profession in the national media meets any of these standards.

For reference, Rep. Black and her husband David Black founded Aegis Sciences Corp., a chemical and drug-testing company. They are reportedly worth more than $150 million.

If you wish to express your views of Rep. Diane Black’s representation of the nursing profession, you can call her at (202) 225-4231 or email her at diane@dianeblack.com. Please send us a copy of your letter at letters@truthaboutnursing.org. Thank you!